By Heini Järvinen

A few weeks ago, there was a media storm when it became known that Microsoft was availing of the right that it gives itself, in its terms of service, to search through users’ Hotmail messages. In the aftermath of the media storm, Microsoft took the welcome decision to change its terms of service. In future, if the company receives information that its services are being used to “traffic in stolen intellectual or physical property from Microsoft,” they “will not inspect a customer’s private content”. Definitely a move in the right direction. In addition, Microsoft undertakes to cooperate with the Center for Democracy and Technology (CDT) and the Electronic Frontier Foundation to “strike the balance in other circumstances that involve, on the one hand, consumer privacy interests, and on the other hand, protecting people and the security of Internet services they use.”

On the other side, however, existing terms of service remain in place, to be updated at an undefined moment “in the coming months”. So, the old rules apply as do the new ones. Furthermore, the overarching problem of the entirely unpredictable and wide-ranging “rights” that Microsoft assigns to itself also remain in force. For example: “In the event we take action against you for a violation of this agreement, we may permanently delete, and you may permanently lose, some or all of your content stored on the services and/or we may cancel your services in their entirety. Data that is deleted may be irretrievable.” Microsoft taking action against one of its users does not mean that the user is guilty, just that Microsoft chooses to take action against them. In other words, they can can do what they want, when they want. Microsoft stresses, however, that having that right and using it is not the same thing and argues that it has taken effective action to protect its users by availing of these powers.

So, what could lead Microsoft to take action against a user? Expressing a profanity is a breach of Microsoft’s code of conduct. Vulgarity is a breach of the code of conduct. Including or linking to content that is protected by intellectual property is a breach of the code of conduct (linking to Bing’s image search service, for example, would, in principle, be a literal breach of Microsoft’s terms of service. Microsoft avails of a “fair use” exception to copyright for this service, but does not offer such flexibility to its users). And, of course, any image of, or a link to an image of, Donald Duck would fall foul (fowl?) of the prohibition of “nudity of non-human forms such as cartoons, fantasy art or manga”.

Put simply, it is extremely difficult to avoid being in breach of Microsoft’s terms of service, because they are written in a way which permits Microsoft to do pretty much anything it likes. In the event of a breach – or even without one – “Microsoft reserves the right, at its sole discretion, and without any obligation to do so, to review and remove user-created services and content at will and without notice, and delete content and accounts.”

This approach represents a massive double standard. On the one hand, Microsoft’s terms of service clearly allow it to act in whatever arbitrary fashion it wants. On the other, as part of the Global Network Initiative (GNI), it undertakes to “respect and protect the freedom of expression of their users by seeking to avoid or minimize the impact of government restrictions on freedom of expression, including restrictions on the information available to users and the opportunities for users to create and communicate ideas and information, regardless of frontiers or media of communication.” Governments may not impose restrictions… but we can.

Microsoft isn’t particularly exceptional in this context. Yahoo (another member of the GNI) permits itself, in its “Free Local Website” terms of service to “remove and discard any Content within the Service, for any reason, including, without limitation, if Yahoo believes that you have violated or acted inconsistently with the letter or spirit of the TOS”.

In recent years, EDRi has had countless discussions with Microsoft and the GNI about their inconsistent attitude and the damage that this does to their credibility when dealing with governments. Microsoft’s public acknowledgement that its is seeking to improve its terms of service is the first positive move from a major industry player. The fact that it is undertaking to work with the CDT and EFF to improve the situation is a sign that this could be an industry-leading change of approach. Let’s hope so.

We’re listening: Additional steps to protect your privacy (28.04.2014)
http://blogs.technet.com/b/microsoft_on_the_issues/archive/2014/03/28/we-re-listening-additional-steps-to-protect-your-privacy.aspx

Microsoft’s “code of conduct”
http://windows.microsoft.com/en-us/windows-live/code-of-conduct

Latest reason to quit Hotmail: Microsoft admits to spying on it (21.03.2014)
http://www.huffingtonpost.com/2014/03/21/hotmail-spying_n_5003855.html

ENDitorial: Microsoft’s vision for regulation of communication by private companies (04.07.2012)
https://edri.org/edrigramnumber10-13microsoft-self-regulation-example/

Global Network Initiative
https://www.globalnetworkinitiative.org/

Yahoo’s Terms of Service
https://info.yahoo.com/legal/us/yahoo/localfreewebsite/details.html

(Contribution by Joe McNamee – EDRi)